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[Cites 13, Cited by 0]

Delhi District Court

Bharat Singh vs State on 7 December, 2011

                IN THE COURT OF SH. VIRENDER KUMAR GOYAL
                         ADDL SESSIONS JUDGE: FAST TRACK COURT 
                                               ROHINI:DELHI


Criminal Appeal No. 37/11
Unique case ID No. 02404R0297542011


Bharat Singh
Son of Sh. Vijay Singh
R/o Village­ Charbang 
PO­ Kanur Ghat,
District Chomali, Utrakhand. 
                                                                    ...Appellant


                               Versus


State


                                                                        .....Respondent


               Date of institution of the case:  21/10/2011
               Arguments heard on: 26/11/2011
               Date of reservation of order: 26/11/2011
               Date of Decision: 07/12/2011

                               JUDGMENT

This appeal has been filed against the judgment dated 12/09/2011 and order on sentence dated 12/09/2011 passed by learned Trial Court.

In brief, the facts are that notice U/s. 279/304A of IPC was given to the appellant long back in the year 1995 and after conducting trial, the judgment and order on sentence have been passed. Appellant has been sentenced to undergo rigorous imprisonment of two years with fine of Rs. CR No. 37/11 1/8 10,000/­ U/s. 304A of IPC. No substantive sentence was imposed U/s. 279/337 of IPC.

It is contended by learned counsel for the appellant that the witnesses did not support the case of the prosecution, so benefit of doubt should be given to the appellant. It is further contended that appellant was neither negligent nor was driving in a rash manner and instead of giving any finding to this extent, presumption has been raised and further no opportunity was given to explain the facts leading to the accident, to the appellant, which has caused miscarriage of justice.

It is further contended that PW1 has not supported the case of the prosecution regarding identity of appellant, who is complaint in this case and PW2, in fact, was not the complainant, but is the victim and he is an interested witness. He was hit from backside with the alleged bus driven by the appellant. So, he was not having any opportunity to see the appellant at the time of accident, hence, the identity of appellant on the basis of deposition of PW2 is quite doubtful.

It is further contended that some other vehicle had committed accident and appellant has been falsely implicated in this case. Learned counsel for appellant has further contended that even in the statement of accused, appellant explained that no accident had taken place with his bus and accident had already taken place. He was implicated probably due to some misunderstanding.

In support of his contention regarding identity of accused/appellant, learned counsel for the appellant has relied upon 1999(2) RCR (Criminal) page 555 titled as Sunder @ Surinder V. State of CR No. 37/11 2/8 Haryana, wherein it has been held that in absence of TIP, identification of accused by the PWs in the court for the first time cannot be made basis for holding the accused guilty.

Learned counsel for the appellant has further relied upon 2001(3) RCT (Criminal) page 15 titled as Love Raj V. State of Punjab, wherein it has been held that if prosecution agency did not disclose as to how they came to know the name of accused, then identity of accused is not established and accused is liable to be acquitted.

Learned counsel for appellant has further relied upon 2003(4) RCR (Criminal) page 859 titled as State of Punjab V. Gurdip Singh, wherein it has been held that identification for the first time in Court is not identification in the eyes of law.

I have heard learned counsel for the appellant and Ld. Addl. PP for the State and have gone through the trial court record and the impugned judgment and order on sentence.

PW1 Rajeev Kumar has admittedly not supported the case of the prosecution regarding identity of accused and has stated that he had not seen the accused earlier and firstly seen the accused in the Court at the time of his examination, but there are other witnesses also regarding the identity of accused. Another is PW2 Nand Kishore. He is injurred. He has stated that on the spot, driver of the said bus had run away leaving the bus, to whom, he had seen, when he was driving and setting down from the said bus. The said bus was being driven by accused Bharat Singh. Similarly, PW7 Prem Lata has stated that driver of the bus was driving the bus at a fast speed. After the impact, the driver of the bus stopped the bus and ran away from the spot. CR No. 37/11 3/8 Driver of the bus is present in the court. The number of the bus was DEP­4040. PW7 has denied the suggestion that she had not seen the driver at the spot and had seen the driver in the PS. She has also denied the suggestion that even her husband had not seen the driver at the spot. Both PW2 and PW7 were on motorcycle with their son Tarun Verma, who died in this accident. Accident took place at about 10.20 p.m.. According to these witnesses, bus came from the backside in a rash and negligent manner and hit the motorcycle and also dragged them for about 200 meters.

The plea of learned counsel for the appellant that some other vehicle had caused the accident is not tenable in any manner as mechanical inspection of both motorcycle and bus was conducted by PW6 retired SI Jai Singh and he has proved his report of mechanical examination of motorcycle No. DL­5SE­8257 Ex. PW6/B, according to this, fresh damages were seen in the rear wheel rim with tyre, chain cover, back light completely damaged. According to his report Ex. PW6/A of bus No. DEP­4040, front bumper left side was found damaged. PW6 has not been cross examined in any manner regarding the fresh damage found on the bus. Even it is not suggested that there was no fresh damage to the bus, as observed by him and was old one or that the report was forged and fabricated.

The judgments relied upon by the learned counsel for the appellant are not applicable to the facts and circumstances of the present case as both PW2 and PW7 have categorically stated before the Court that they had seen the driver after the accident, when he came down from the bus and ran away from there. Conduct of appellant itself is speaking. If accident had not taken place with his bus, then why he fled away from there. There is no explanation CR No. 37/11 4/8 regarding fresh damage seen on the bus as per report of PW6. Merely that PW1 has not supported the case of the prosecution regarding identity of accused does not mean that accused/appellant was not seen by PW2 and PW7 at the spot, hence, there is no dispute about the identity of accused/appellant. It cannot be said in such circumstance that accused/appellant was seen by PW2 and PW7 for the first time in the Court. He was seen by the witnesses at the time of accident, when he came down from the bus after the accident and fled away from there.

Explanation of accused that accident had taken place with some other vehicle is falsified from the deposition of PW2, who has stated after the accident, motorcycle was dragged for about 200 meters by the bus. So, there is nothing to disbelieve the witness in any manner about the identity of accused/appellant. Even in the cross examination, PW2 has stated that he had seen the accused face to face, when he came down from the bus and had run away from the spot after the accident.

Regarding the rash and negligent driving, statement of PW7 is sufficient to prove the same, who has stated in the cross examination that they were standing at red light. There was red light signal at the spot, where they were standing. This fact itself shows the rash and negligent manner of driving of accused/appellant because if there was red light, then he was required to slow down and stop his bus, which he failed to do so. So, in my opinion, there is no illegality or impropriety in the impugned judgment dated 12/09/2011. Learned Trial Court had rightly appreciated the evidence and convicted the appellant U/s. 279/337/304A of IPC. Hence, the conviction of appellant is upheld.

CR No. 37/11 5/8

Learned counsel for the appellant has contended that appellant is not a previous convict nor habitual offender and he is the sole bread earner of his family. Learned counsel for the appellant has further contended that not only the appellant, but his whole family will suffer and will be put to starvation, if appellant will be sent behind bars. Learned counsel for the appellant has further contended that in such circumstances, entire family of the appellant will be ruined.

Learned counsel for the appellant has further contended that FIR is of 1994. Appellant is resident of Uttrakhand and he has faced trial of this case since 1994. so, considering the age, incident and character of the appellant, he be released on probation of good conduct.

I have considered the submissions of learned counsel for the appellant. In this respect, I rely upon Baljit Singh V. State of Punjab, 1995 CRI. L.J 3189, wherein benefit of probation Under Section 304A IPC has been given. I further rely upon Mann Parkash V. State of Haryana, 1996(1) RCR 437, wherein again benefit of probation section 360 CrPC was given. It has been held that:

"The Courts have emphasized that sentencing an accused person is a sensitive exercise of discretion and not a routine or mechanical prescription acting on hunch. The Courts are required to collect material necessary to award just punishment and also to apply its mind to the facts and circumstances of the case whether an accused/convict can be given the benefit of the provisions of Section 360 CrPC or the provisions of Probation of Offenders Act. The Supreme Court in the case of Ved Parkash V. State of Haryana, AIR 1981 Supreme Court 643 while emphasising the need of dealing with the offenders in such a manner that he becomes a non­offender, observed as under:
CR No. 37/11 6/8
"We emphasize this because the legislations which relate to amelioration in punishment have been regarded as 'Minor Acts' and, therefore, of little consequence. This is a totally wrong approach and even if the Bar does not help, the Bench must fulfill the humanizing mission of sentencing implicit in such enactments as the Probation of Offenders Act."

It has been further held that "In a very recent case titled as A.P. Raju V. State of Orissa, 1995 Supreme Court Cases 675, the Supreme Court while dealing with a case of death by rash and negligent driving under Section 304­A of the Indian Penal Code, held as under:

"Taking in view all these factors, in our opinion, the interest of justice would be met if instead of now sentencing the appellant to serve a term of imprisonment and sending him to prison again, we order his release under Section 360 Criminal procedure Code on the appellant's entering into a bond with one surety to keep good conduct and be of good behaviour and keep peace for a period of one year from the date of execution of the bond. We make an order accordingly. The bond shall be executed by the appellant within one month from today before the trial Court. With the above modification of sentence, the appeal is disposed of." The Courts, therefore, have to draw a balance between the chances of the offender becoming a non­ offender and minimising the chances of such an offender repeating commission of such offences on the one hand, and, on the other hand, from the accused drawing a premium over the commission of the offence, in the event the accused is granted such benefit. This would depend upon various factors which have been settled by various pronouncements of all Courts and they form kind of guidelines for the Courts to strike this balance.
It has been further held that "There can be no two opinions that the benefit of Section 360 and 361 of the Criminal Procedure Code and the provisions of Probation of Offenders Act can neither be granted as a matter of rule nor can be declined as a matter of rule. Each case must be dealt with on its own merits. In the present day when the road accidents are certainly on the increase, the Courts will have to apply reasonable caution while granting such benefit to the accused in these cases."
CR No. 37/11 7/8

In view of above, order on sentence dated 12/09/2011 is set aside. Appellant is admitted to probation of good conduct for a period of two years U/s. 360 of CrPC on his furnishing a personal bond in the sum of Rs. 10,000/­ with one surety in the like amount with the condition that during this period, he will keep peace and be of good behaviour, to the satisfaction of learned Trial Court. In case of default, appellant will appear himself before the learned Trial Court for acceptance of sentence.

The appellant is also directed to deposit the compensation of Rs. 20,000/­ with the court for reimbursement of the same to the LRs of deceased Tarun Verma.

The appeal is disposed of accordingly.

TCR be sent back to the court concerned with the copy of the order.

Appeal file be consigned to record room.

Announced in Open Court on dated 7th of December, 2011 (Virender Kumar Goyal) Additional Sessions Judge Fast Track Court Rohini : Delhi CR No. 37/11 8/8